Where is the State of Ohio in the Fight against Obamacare?

According to a March 2010 press release issued by Ohio Attorney General Richard Cordray, our state will not be joining other state lawsuits against the Patient Protection and Affordable Care Act (the official name of the federal health care law) because the suits do not have “any legal merit whatsoever.”

The Attorney General based his decision on his purported review of the statute and his experience with federal constitutional law.  However, on August 2, 2010, the U.S. District Court for the Eastern District of Virginia issued the first nationwide opinion on the matter.  The Court questioned whether Congress had the power to regulate and tax a citizen’s decision to not participate in interstate commerce (here, a citizen’s decision to not purchase health insurance).

The Court held that

[w]hile this case raises a host of complex constitutional issues, all seem to distill the single question of whether or not Congress has the power to regulate—and tax—a citizen’s decision not to participate in interstate commerce.  Neither the U.S. Supreme Court nor any circuit court of appeals has squarely addressed this issue.  No reported case from any appellate court has extended the Commerce Clause or Tax Clause to include the regulation of a person’s decision not to purchase a product, notwithstanding its effect on interstate commerce.  Given the presence of some authority arguably supporting the theory underlying each side’s position, this Court cannot conclude at this stage that the Complaint fails to state a cause of action.

The Court’s holding suggests that the state lawsuits challenging the federal healthcare law (at least as to the individual mandate) have legal merit, are not frivolous, advance a plausible claim with an arguable legal basis, and are therefore entitled to a hearing on the merits.

Perhaps Attorney General Cordray should rethink his position.

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